No. 11,999.

#### Grimes, et al. *v.*John Harvey Fuel and Feed Company.

Decided March 12, 1928.

Rehearing denied April 2, 1928.

On motion to vacate order denying' motion for new trial. Motion denied.

*Affirmed.*

*On Application for Supersedeas.*

1. *Judgment*— New *Trial*— Orders—Vacation. Where an attorney neither attended, nor ascertained the result, of a hearing on motion for new trial, it is held, under the facts disclosed, that there was no abuse of discretion on the part of the trial court in denying a motion, based on § 81 of the Code, to vacate' the order denying the motion.

*Error to the County Court of Lake County, Eon. Thomas Evans, Judge.*

Mr. David Rosner, for plaintiffs in error.

Mr. Joseph W. Clarke, for defendant in error.

*Department One.*

Mr. Justice Walker

delivered the opinion of the court.

*412Plaintikf in error was defendant, defendant in error plaintiff below. Tbe case was tried September 2, 1927, taken under advisement by tbe court, and on September 27th a money judgment rendered against tbe plaintiff in error. Motion for new trial was filed October 8th, and overruled October 17th. October 31st, plaintiff in error filed bis motion to vacate tbe order denying tbe motion for new trial or for an order to “allow him to appeal to the district court.” This motion was denied, which ruling of tbe court is tbe only error assigned and argued here. Tbe writ of error however runs to tbe judgment itself, and supersedeas is applied for.

Tbe motion of October 31st was based upon section 81, Code of Civil Procedure, 1921, which authorizes tbe court to relieve a party from an order taken against bim through mistake, surprise or excusable neglect. As counsel for plaintiff in error was given timely notice of tbe entry of tbe judgment and of tbe bearing on bis motion for new trial, bis only ground of complaint could be, and as we analyze bis contentions, is, that be was not advised of tbe ruling on tbe motion for new trial until tbe time for appeal to the district court bad expired, and that be being a resident of Denver and not present at tbe bearing at Leadville, had relied for this information upon tbe oral assurance given bim at the trial, by counsel for plaintiff below, that be would be notified of tbe ruling. However, bis affidavit made in support of tbe motion to vacate does not allege any agreement on tbe part of tbe attorney for plaintiff below except that final judgment would not be asked for without first notifying tbe defendant’s counsel, and generally that no technical advantage would be taken of defendant’s counsel by reason of bis absence from tbe place of trial. Fairly construed, this agreement did not impose any obligation to notify defendant’s counsel of tbe court’s ruling on tbe motion for new trial, nor did it justify bim in neither attending at tbe bearing nor ascertaining tbe result thereof. Certainly it cannot be said that tbe trial court before whom *413the affidavit shows the agreement was entered into, abused the discretion with which the code provision above mentioned invests him, in refusing to set aside the order.

The application for supersedeas is denied, and the judgment is affirmed.

Mr. Chief Justice Denison, Mr. Justice Burke and Mr. Justice Whitford concur.